Federal Court of Australia

Caddy (Administrators Appointed), in the matter of Roberts Co (Vic) Pty Ltd (Administrators Appointed) [2025] FCA 492

ORDERS

THE COURT DIRECTS THAT:

1.    Pursuant to section 90-15 of the Insolvency Practice Schedule, being Schedule 2 to the Corporations Act 2001 (Cth), the First Plaintiffs are justified in dealing with subcontractor retention monies credited to the account of the Second Plaintiff held with the National Australia Bank Limited and named “Roberts Co (Vic) Retention Account” and ending with the numbers 3767 (Retention Account) as though those funds are held on trust, to be administered in accordance with the relevant subcontracts, by the Second Plaintiff on behalf of the subcontractors listed in the first column of the table in Annexure A to this order, for the amounts referred to in the second column of the table in Annexure A.

THE COURT ORDERS THAT:

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground referred to in s 37AG(1)(a) of the FCA Act (that the order is necessary to prevent prejudice to the proper administration of justice), the bundle of documents marked “Confidential Exhibit JCI-3” in the Affidavit of Jason Craig Ireland filed on 8 May 2025 be marked confidential and prohibited from publication, except pursuant to an order of the Court, until 11 May 2027.

3.    The First Plaintiffs take all reasonable steps to cause notice of these orders to be given, within one business day, to:

(a)    the creditors (including persons claiming to be creditors) of the Second Plaintiff, in the following manner:

(i)    where the First Plaintiffs have an email address for a creditor, notifying each such creditor, via email, of the making of the orders and providing a link to a website where the creditor may download the orders and the interlocutory process;

(ii)    where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with sub-order (i) above), notifying each creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the interlocutory process; and

(iii)    placing scanned, sealed copies of the orders and the interlocutory process on the website maintained by the First Plaintiffs at https://www.mcgrathnicol.com/creditors/roberts-co-vic-pty-limited; and

(b)    the Australian Securities and Investments Commission;

(c)    the Deputy Commissioner of Taxation; and

(d)    the Attorney-General’s Department (administering the Fair Entitlements Guarantee Scheme).

4.    Any person who can demonstrate a sufficient interest has liberty to apply to vary the direction made pursuant to order 1 above, on three business days’ notice being given to the Plaintiffs and the Court.

5.    The First Plaintiffs have liberty to apply on two business days’ notice to the Court in relation to any variation or discharge of the Court’s direction or orders.

6.    The First Plaintiffs’ costs of and incidental to the interlocutory process filed 2 May 2025 be paid from amounts credited to the Retention Account.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

Introduction

1    The First Plaintiffs, Mr Caddy and Mr Ireland, are the joint and several administrators (Administrators) of the Second Plaintiff, Roberts Co (VIC) Pty Ltd.

2    The Administrators bring an interlocutory application seeking a direction pursuant to s 90-15 of the Insolvency Practice Schedule Corporation 2016 (IPSC), being Schedule 2 to the Corporations Act 2001 (Cth) (the Act), that they are justified in dealing with subcontractor retention monies credited to the account of the Second Plaintiff held with the National Australia Bank Limited named “Roberts Co (VIC) Retention Account” and ending with the numbers 3767 (Retention Account) as though those funds are held on trust by the Second Plaintiff on behalf of the subcontractors listed in the first column of the table in Annexure A to the interlocutory application for the amounts referred to in the second column of the table in Annexure A.

3    The application is supported by four affidavits:

(a)    an affidavit of Jason Craig Ireland, one of the Administrators, made on 2 May 2025, (First Ireland Affidavit);

(b)    an affidavit of Samantha Jane Kinsey, a solicitor of King Wood & Mallesons acting for the Administrators, made on 6 May 2025 (First Kinsey Affidavit);

(c)    a further affidavit of Mr Ireland made on 8 May 2025 regarding correspondence the Administrators have received from various creditors (the Second Ireland Affidavit); and

(d)    a further affidavit of Ms Kinsey made on 9 May 2025 regarding a particular subcontract and further correspondence with the Administrators (the Second Kinsey Affidavit).

4    Mr Ireland provides his evidence, particularly his views, as being on behalf of both the Administrators. At the hearing, the Administrators also sought a non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the grounds referred to in s 37AG(1)(a) that the order is necessary to prevent prejudice to the proper administration of justice on the basis that the documents in relation to “Confidential Exhibit JCI-3” were commercial in confidence and that publication of those be prohibited, except pursuant to an order of the Court, until 12 May 2027.

5    For the reasons given below, I am satisfied that it is appropriate to give the Administrators a direction generally in the terms sought and to make a non-publication order in relation to “Confidential Exhibit JCI-3”.

Background

6    Roberts Co is a construction company which performed construction and infrastructure works on major commercial, residential and other projects in Victoria. At the time of this application, it is the only company from the broader Roberts Co group of companies which is in administration.

7    The Administrators were appointed on 14 March 2025.

8    On 16 April 2025, Derrington J extended the period within which the Administrators are required to convene the second meeting of creditors under s 439A(5)(b) of the Act from 22 April 2025 to 23 June 2025. Prior to Roberts Co going into administration in 2022, it entered certain agreements with Probuild Constructions (Aust) Pty Ltd (Probuild), which was in administration. Probuild had entered into administration in February 2022. Probuild was described as one of Australia’s largest commercial construction groups. Roberts Co purchased the Victorian arm of Probuild in April 2022, which included six Victorian projects (the Novated Projects) that Probuild was engaged as the head contractor. It will be necessary to return to this in more detail. It is these projects for which the Retention Account was established.

9    On 28 April 2025, the Administrators gave notice to creditors that this application seeking the direction pursuant to s 90-15 of the IPSC would be made. The Administrators also advised creditors that it would seek for it to be heard in the week commencing 5 May 2025. This was done by way of a circular to creditors. Relevantly, that circular stated:

In the course of their investigations, the Administrators have identified a retention account held in the name of [Roberts Co] (Retention Account) for subcontractors in respect of the following projects which were novated from Probuild Constructions (Aust) Pty Ltd:

•    130 Little Collins Street, Melbourne

•    CSL Fitout, 645 Elizabeth Street, Melbourne

•    500 Bourke Street, Melbourne

•    502 Albert Street, East Melbourne

•    UNO, 111 A'Beckett Street, Melbourne

•    Elizabeth North Stage 2, 645 Elizabeth Street, Melbourne

10    The Administrators initially received six responses from creditors. Those responses can be described as those creditors seeking clarification and one creditor seeking to make a claim of the retention fund, which the Administrators explained was a claim in relation to two different projects not the subject of the retention fund. The Administrators have responded separately to each of those emails, answering the various queries and clarifying the position in relation to the projects the subject of the Retention Account.

11    On 2 May 2025, after the Application had been filed, the Administrators gave notice of the filing of the application to creditors, again, by way of a circular. A link to the application itself was provided in that circular and creditors were advised that they had requested that the application be heard by the Court on 9 May 2025. Importantly, the circular also expressly advised the following:

Any subcontractor or other creditors of [Roberts Co] who have any concerns in relation to the application or wish to seek leave to be heard in relation to the application are encouraged to contact Administrators … [contact details were provided].

12    On 8 May 2025, the Administrators gave another notice to creditors by way of circular advising of the hearing of this application on 9 May 2025, at 2:15 pm. Again, details of the application and how it relates to specific projects were stated. The Administrators advised that they would provide creditors with an update on the outcome of the Court hearing within one business day of any Orders being made.

13    At the hearing, the Administrators had prepared a table of all communications from creditors and responses following the circular. It is clear that the Administrators have responded to each separate communication.

14    The Administrators have also given notice to the Australian Securities and Investment Commission (ASIC). This was done on 2 May 2025. That correspondence alerted ASIC to the nature of the application and the Orders being sought as well as providing copies of the interlocutory application and First Ireland Affidavit, noting that the request for the application was to be listed on 9 May 2025. ASIC responded on 5 May 2025, confirming receipt but did not substantively engage with the material provided.

Legal principles

15    The Administrators’ application is made pursuant to s 90-15 of the IPSC.

16    Section 90-15 relevantly provides that:

Court may make orders

(1)     The Court may make such orders as it thinks fit in relation to the external administration of a company.

Orders on own initiative or on application

(2)     The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90-20.60

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the external administration of the company;

…

(d)    an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company.

17    As Roberts Co has Administrators appointed, it is under external administration: see s 5-15 of the IPSC.

18    I gratefully adopt the relevant principles which were summarised in Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111 at [7] to [11] by Stewart J as follows:

7.    A court is empowered by s 90-15(1) of the Insolvency Practice Schedule to “make such orders as it thinks fit in relation to the external administration of a company”. The power conferred by s 90-15(1) is “very broad”: Kelly (in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533; 144 ACSR 292 at [51] (Gleeson J). It includes a power to make orders determining any question arising in the external administration of a company: s 90-15(3)(a). An administrator of a company may apply for such an order: s 90-20(1)(d), read with s 9 of the Act (paragraph (d) of the definition of “officer”).

8.    The court’s power under s 90-15(1) includes a power to give directions about a matter arising in connection with the performance or exercise of an administrator’s functions or powers: Reidy, in the matter of eChoice Ltd (Administrators Appointed) [2017] FCA 1582 at [26]-[27] (Yates J). In this respect, s 90-15(1) confers a power to give directions that was previously conferred by ss 447D(1) and 479(3) of the Act concerning administrators and liquidators, respectively: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; 93 ALJR 807 at [166] (Gordon J); Reidy at [27] (Yates J); and Kelly (liquidator), in the matter of Australian Institute of Professional Education Pty Ltd (in liq) [2018] FCA 780 at [30] (Gleeson J). The principles governing directions to administrators and those governing directions to liquidators are relevantly analogous: Re Ansett Australia Ltd (No 3) [2002] FCA 90; 115 FCR 409 at [43] (Goldberg J).

9.    The function of a judicial direction of this kind is not to determine rights and liabilities arising out of a particular transaction, but to confer a level of protection on the administrator. An administrator who acts in accordance with a judicial direction, having made full and fair disclosure to the court of the material facts, has “protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision or undertaking the conduct” proposed: Ansett at [44].

10.    A court may give a direction on an issue of “substance or procedure” or “of power, propriety or reasonableness”: Ansett at [65]. Although a court will not give a direction on a decision that is purely commercial, a direction may be provided where there is a “particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought”: Ansett at [65]. As Black J observed in In the matter of RCR Tomlinson Ltd (administrators appointed) [2018] NSWSC 1859, a decision may have a “commercial character” but nonetheless be amenable to judicial direction. His Honour said (at [14]) of the application before him (which sought a direction as to whether a company should borrow loan funds):

The Court has been prepared to give directions of this kind, where the decision is a complex one, and where it has to be made, as here, under circumstances of time pressure, in respect of a very large corporate group, and by balancing different interests. The Court’s preparedness to grant such a direction in those circumstances reflects the intrinsic unfairness of leaving a voluntary administrator to be at risk of liability, in respect of a complex decision of that kind, where any decision that is made, including making no decision, will have inevitable risks for some or all of the affected constituencies.

11.    Because the effect of a direction under s 90-15 is to exonerate the liquidator or administrator if full disclosure is made, it will usually necessitate consideration by the court of the liquidator’s or administrator’s reasons and decision making process: see Re ONE.TEL Ltd [2014] NSWSC 457; 99 ACSR 247 at [36] per Brereton J (referring to former s 511 of the Act).

Consideration

19    On the date that the Administrators were appointed, the records of Roberts Co indicated that there was approximately $21.3 million in subcontractors’ claims. Roberts Co had approximately 470 creditors with claims in the order of $272 million.

20    In relation to the claims by subcontractors, Roberts Co has segregated some retention monies, those being the subject of the Novated Projects. The majority of subcontractors’ claims engaged by Roberts Co on other projects are not the subject of separate or segregated retention monies.

21    The agreements that Roberts Co entered to effect the acquisition of Probuild’s Victorian business were as follows:

(a)    Roberts Co purchased Probuild’s business assets pursuant to an asset sale agreement dated 4 April 2022 (ASA) and took over the Novated Projects;

(b)    Roberts Co, Probuild and the principal of each of the Novated Projects entered into a tripartite deed of variation by which each of the head contracts were novated from Probuild to Roberts Co (Head Deed of Novation). These were entered variously between 4 April 2022 and 23 April 2022; and

(c)    Roberts Co, Probuild and some of the subcontractors entered into tripartite deeds of novation by which those subcontracts were novated from Probuild to Roberts Co, (Subcontract Novation).

22    The six projects being the Novated Projects were:

(a)    the fit-out works for the CSL corporate headquarters and research and development facility located at 645 Elizabeth Street, Melbourne (CSL Project);

(b)    the mixed-use commercial project known as Elizabeth North Stage 2 also located at 645 Elizabeth Street, Melbourne (ENS2 Project);

(c)    the ‘Lanson Place’ hotel development located at 502 Albert Street, East Melbourne (502 Albert Street Project);

(d)    the residential development known as UNO located at 111 to 125A Beckett Street, Melbourne (UNO Project);

(e)    the redevelopment of commercial premises located at 500 Bourke Street, Melbourne (500 Bourke Street Project); and

(f)    the 130 Little Collins Street project.

23    Four of the Novated Projects, being the CSL Project, the ENS2 Project, the 502 Albert Street Project, and the UNO Project, were all subject of separate works continuation agreements. These agreements enabled works on these projects to continue. These agreements, in relation to the CSL project and the ENS2 project, expressly refer to the subcontract retentions that accrued in respect of works carried out pursuant to the relevant subcontracts to be held on trust for the relevant subcontractors in separate project bank accounts established for each of those projects. The works continuation agreement in relation to the 502 Albert Street Project provided that it would hold retention amounts as a form of security, which would be placed in a project specific bank account. However, Probuild did not hold any subcontractor retention monies for that project. The works continuation agreement in relation to the UNO Project did not specifically require subcontractor retention amounts to be held on trust. However, it did require that all payments be made by the principal to Probuild be paid into a separate project specific bank account.

24    At the time Roberts Co was taking over the Novated Projects from Probuild, it represented to the subcontractors with whom they were engaging that the relevant retention monies would be held by Roberts Co on trust.

25    Consistent with this approach, Roberts Co established the Retention Account. This account was opened on 15 March 2022, shortly prior to the novations of the Novated Projects. It appears that this was done for the stated purpose of that account holding retention funds withheld from subcontractors engaged on the Novated Projects. The Retention Account is held with National Australia Bank (NAB). Although the Administrators were initially unable to locate a signed version of the NAB Retention Account deed, a copy was recently provided by NAB. The NAB Retention Account defines retention money, in effect, to mean any payment or amounts retained by Roberts Co and paid into the Retention Account pursuant to the terms of a subcontract novated from Probuild to Roberts Co necessarily in respect of a Novated Project. Further, clause 2 provides for security and retention money and, specifically, clauses 2.1 and 2.2 relevantly provide as follows:

2.1    Security

(a)    The parties acknowledge that NAB holds the Security over the assets of Roberts Co.

(b)     NAB acknowledges that:

(i)    the Retention Money is held by Roberts Co in accordance with the relevant Subcontract and subject to that document, it has no entitlement to those moneys unless and until those moneys are released to it in accordance with that document; and

(ii)    NAB will not exert any rights under a Security Interest over the Account or the proceeds in it in relation to such moneys that are held by Roberts Co as trustee or stakeholder under a Subcontract.

2.2     Deed poll

Roberts Co acknowledges that it holds Retention Moneys in accordance with the relevant Subcontract as a stakeholder in accordance with the terms of the relevant Subcontract. This clause operates as a deed poll in favour of each Subcontractor and is enforceable by them even though they are not a party to this document.

26    The Administrators give evidence that on 21 April 2022, an initial deposit was made into the Retention Account which appeared to be in relation to the 500 Bourke Street Project. Further, on 30 August 2022, Probuild issued four letters to Roberts Co concerning the release of subcontractor retention monies held by the Probuild Administrators in connection with the works undertaken on the CSL Project, the ENS2 Project, the UNO Project and 502 Albert Street Project. In relation to the first three of these projects, the letters describe amounts to be released subject to Roberts Co agreeing to the terms of the letter which required and were countersigned by Roberts Co. These letters refer to the deeds of novation and works continuation agreements in relation to each project. The retention amounts were to be released to Roberts Co and paid to the Retention Account. Although a similar letter was issued and countersigned in relation to 502 Albert Street Project, the Probuild Administrators did not hold any retention monies on that project. Further, on 20 September 2022, consistent with those letters, amounts were paid by the Probuild Administrators to the Retention Account in relation to the CSL Project, the ENS2 Project and the UNO Project.

27    The Retention Account balance has changed over time and as various retention monies have been released to subcontractors on the Novated Projects in accordance with the terms of the relevant subcontract, and further retention monies have been withheld from subcontractors, again, pursuant to the relevant subcontract in relation to the Novated Projects. This has continued in relation to the Novated Projects, with Roberts Co placing retention monies into the Retention Account in accordance with the terms of those subcontracts. The subcontractors on the Novated Projects were treated in this way. Roberts Co did not set aside retention monies it withheld from subcontractors engaged on other projects.

28    The Administrators bring this application seeking judicial advice pursuant to s 90-15 of the IPSC as an issue which arises in this administration is whether the retention monies held in the Retention Account are held by Roberts Co on trust for subcontractors on the Novated Projects in the proportions withheld from each subcontractor or otherwise subject to some other fiduciary obligation.

29    If so, then insofar as the relevant subcontractor creditors are presently entitled to payment of those monies in accordance with the terms of their subcontracts, subcontractors engaged on the Novated Projects would be entitled to call for a transfer of the retention monies held in the Retention Account on their behalf and to recover the whole of those retention monies (subject only to any deduction on account of costs of this application).

30    If not, then the retention monies held in the Retention Account represents an asset available to Roberts Co for its own purposes, liable to be distributed pro rata amongst all unsecured creditors.

31    The Administrators observed that nothing in the terms of the subcontracts on the novated projects themselves obliged or obliges Roberts Co to hold retention monies “on trust” or to act as a stakeholder of those monies for the subcontractors engaged on those projects, pending the disbursement of those monies in accordance with the subcontracts.

32    Therefore, referring to the principles as set out above, this is not purely a commercial matter or decision. There is a particular legal issue which is raised by the Administrators, and it is appropriate for the Administrators to bring this application to the Court in these circumstances. The proper characterisation of the funds in the Retention Account is not clear or straightforward. It is also apparent that the Administrators have made full disclosure to the Court, including by provision of documents in relation to certain works to be performed in relation to the CSL project with Pure Piping Pty Ltd, which could be seen as pointing away from holding the retention monies in the Retention Account on trust.

33    The fact that the express language does not declare a trust is not determinative of the issue. Rather, it merely calls for the inquiry as to the objective intention disclosed by the language used. As was observed by French CJ in Korda v Australian Executor Trustees (SA) (2015) 255 CLR 62; [2015] HCA 6 at [3]:

3    The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.

[citations omitted]

34    An express trust requires three certainties: certainty of intention, subject matter, and object: Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95 at 97. Certainty of intention is to be determined objectively based on the words used by which the trust is alleged to have been made: Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 at [13] to [18], [46] to [66], [98] to [116]. Such an intention, objectively ascertained, may be established by using the technical language, “upon trust”, however, that is not the only way that the intention can be established: see Byrnes v Kendle at [49] and [112] to [114]; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liquidation) (2000) 202 CLR 588; [2000] HCA 25 at [34] and Queensland Nickel Pty Ltd (in liquidation) v QNI Metal Limited & Ors [2021] QCA 138 at [73]. Absent an explicit declaration, the intention is to be objectively considered by reference to the language used, the nature of the transaction, and the circumstances attending the relationship between the relevant parties: Korda v Australian Executor Trustees at [3]; Byrnes v Kendle at [55] to [60], [103], [106] and [112] to [114]; Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34 at [44].

35    Mason CJ, Deane, Toohey and Gaudron JJ explained that “(a) trust may be created without the use of the word, ‘trust’” and that “no special words are necessary to create a trust”: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; [1993] HCA 1 at 165 to 166. Furthermore, it has been cited with approval that “[t]here is no magic in the word “trust.””: Tito v Waddell & Ors (No 2) [1977] 3 All ER 129 at 220, citing Lord O’Hagan in Kinloch v Secretary of State for India in Council (1882) 7 AppCas 619 at 630.

36    Bell, Gageler and Keane JJ explained in Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at [113] that:

113    [U]nless there is something in the circumstances of the case to indicate otherwise, a person who has the custody and administration of property on behalf of others or who has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit is a trustee in the ordinary sense.

37    To these observations, are those of the Full Court in Frigger v Trenfield (No 2) [2023] FCAFC 49 at [249]:

249    As Millett LJ put it in Twinsectra Ltd Yardley [2002] 2 AC 164 at 185 (which was cited with approval in Byrnes v Kendle by Gummow and Hayne JJ at [55]):

A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter them.

38    Finally, the necessary intention to create a trust can be inferred from the circumstances, as was explained by Mason CJ and Dawson J in Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 at 618 to 619:

… If the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to the intention, then there is no reason why, in a given case, an intention to create a trust should not be inferred. The present is just such a case. The trust is an express, not a constructive, trust.

39    The Administrators submit that despite the absence of the express language referring to the retention funds in the Retention Account being held “on trust”, the following objective factors support a proper characterisation being that those funds are held on trust. Immediately before acquiring Probuild’s Victorian business and taking over the novated projects in place of Probuild in April 2022, Roberts Co:

(a)    established the Retention Account with a view to that account acting as a de facto trust account in respect of the retention monies withheld from subcontractors on Novated Projects, with such monies to be administered in accordance with those subcontracts;

(b)    intended that funds in the Retention Account be segregated from the company’s or Roberts Co’s own funds available for its use in the ordinary course and unavailable to Roberts Co’s general body of creditors in the event of insolvency;

(c)    told novated subcontractors that the retention monies would be held by Roberts Co on trust;

(d)    entered into six head contract deeds of novation, three of which expressly provided that Probuild and/or the relevant principal would transfer subcontract retention monies held by them to Roberts Co, to be held on trust by Roberts Co in the Retention Account for the purpose of administering novated subcontracts in accordance with their terms, and two of which were silent on the question of subcontractor retention monies on account of no such retention monies then being held by the Probuild Administrators or by project principals; and

(e)    entered into the NAB Retention Account deed by which:

(i)    protected monies in the Retention Account from claims NAB might otherwise be able to make or recourse NAB might otherwise be able to have to that money; and

(ii)    acknowledged by deed poll in favour of novated subcontractors that it would hold “any payment or amount retained by it and paid into the account” in accordance with the relevant subcontract as a stakeholder in accordance with the terms of the relevant subcontract.

40    Furthermore, Roberts Co operated the Retention Account consistently with the above, only utilising the funds in that account in a manner authorised by the subcontracts pursuant to which such funds were held from subcontractors.

41    These objective considerations do support the creation of the necessary intention as referred to in the authorities outlined above to create a trust. That is, Roberts Co had the custody and administration of the retention funds in the Retention Account, being the property or subject matter of the trust, beneficially for another, being the relevant subcontractors for which Roberts Co held those funds, subject to the terms of the relevant subcontracts. The object being the subcontractors. In this way, the better view is that the three certainties of an expressed trust are satisfied. As already observed, there is no magic in the word “trust” in this regard. The observations of the Full Court in Frigger and Mason CJ in Bahr v Nicolay set out above are apt.

42    As such, I am satisfied that it is appropriate to give the direction sought by the Administrators, that they are justified in treating funds held in the Retention Account as if they are held by Roberts Co on trust on behalf of the subcontractors, pursuant to the relevant subcontracts. The precise terms of the order will also refer to the necessary annexure, which details the relevant amounts for each subcontractor.

43    The Administrators also sought an order pursuant to s 37AF of the FCA Act for a non-publication order in relation to the “Confidential Exhibit JCI-3”, which exhibited commercial in-confidence agreements. It was submitted that such agreements required that confidence be retained.

44    Further, it was submitted and I accept that disclosure of such agreements would be detrimental to the voluntary administration while negotiations were being undertaken in relation to the Novated Projects, and that would give those participants a commercial advantage in such circumstances. Commercial in-confidence or commercially sensitive information may form a sufficient basis for a grant of a confidentiality order: see Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35], Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23], Cyclopet Pty Ltd v Australian Nuclear Science and Technology [2012] FCA 1326 at [7]; Keyzer v La Trobe University (2019) 165 ALD 93; [2019] FCA 646 at [30]; One Funds Management Limited, in the matter of One Funds Management Limited [2023] FCA 1212 at [47], and Clime Capital Limited v UGL Pty Ltd (No 2) [2020] FCA 257 at [15].

45    The making of a non-publication order in these circumstances ensures that the Court’s processes should not result in value of the confidential information being destroyed or diminished. Otherwise, members of the public might lose confidence in the Court and the Court’s processes “might open the way to abuse” by competitors or other persons: Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 and Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 at [148].

46    As such, I am satisfied that an order pursuant to s 37AF of the FCA Act, on the ground referred to in s 37AG(1)(a), is necessary to prevent prejudice to the proper administration of justice.

Associate:    

Dated:    15 May 2025